Marital Confidences and Spousal Testimonial Privileges
Spouses may be able to claim two separate privileges that protect them from testifying at trial: the marital confidences privilege and the spousal testimonial privilege.
Marital Confidences Privilege
The marital confidence privilege (sometimes referred to as marital communications privilege) is based on the policy of encouraging spousal harmony, and preventing people from having to condemn, or being condemned by, their spouses. The privilege may be invoked in either criminal or civil proceedings. The marital confidences privilege only applies to communications made during marriage and cannot be invoked for communications before marriage, or after divorce.
The elements of the marial confidences privilege are as follows:
- Confidential communication
- Between married people
- Relating to the marriage (some courts apply this third prong)
Thus, the privilege may be broken if either of these elements is lacking. For instance, if the confidential communication is disclosed to a third party the confidentiality will be broken. In order for the confidential communication prong to be proven, both spouses must intend the communication to be confidential.
The marital confidences privilege, also called the "marital communications privilege," is a form of privileged communication protecting the contents of confidential communications between a married couple. This privilege applies in civil and criminal cases. When applied, a court may not compel one spouse to testify against the other concerning confidential communications made during marriage. The privilege survives divorce so one spouse may prevent an ex-spouse from testifying.
Spousal Testimonial Privilege
Exceptions to these privileges
In certain actions such as domestic abuse or child abuse, the court will not permit one spouse to use either privilege against another spouse.
See Evidence
